An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

The Federal Trade Commission (FTC) is seeking comments from the general public on proposed amendments to the Children’s Online Privacy Protection Rule (COPPA Rule or the Rule).

The Children’s Online Privacy Protection Act (COPPA) was passed in 1998. It required the FTC to issue regulations regarding the collection of children’s personal information by operators of websites or online services directed to children under 13, and to enforce these regulations. The COPPA Rule was issued in November 1999, and became effective on April 21, 2000.

The COPPA Rule required the FTC, no later than April 21, 2005, to do a review of the Rule and to report the results of this review to Congress. The FTC sought public comments in 2005on the Rule, and also sought additional comments on the COPPA Rule’s sliding scale approach to obtaining parental consent, which takes into account how children’s collected information will be used. The FTC announced in April 2006 its decision to retain the COPPA Rule without changes.

In March 2010, the FTC asked the public to comment on whether changes to technology warrant changes to the COPPA Rule. The FTC also held a public roundtable during the comment period to discuss COPPA’s definitions of “Internet,” “website,” and “online service” as they apply to new devices and technologies.

After reviewing these public comments, the FTC is now proposing to amend the COPPA Rule. It proposes to modify some of the Rule’s definitions, and to update the requirements for parental consent, confidentiality and security, and safe harbor provisions. The FTC also proposes to add a new provision addressing data retention and deletion.

Parental Consent (16 CFR 312.5):

(p. 59 and following)

The FTC proposes to eliminate the “email plus” method for parental consent. This method allows operators to obtain verifiable parental consent through an email from the parent, but the email must be coupled with an additional step, such as postal address or telephone number from the parent, and confirming the parent’s consent by letter or telephone.

The FTC found that electronic scans and video conferencing technologies are functionally equivalent to the written and oral methods of parental consent originally recognized by the FTC in 1999. Therefore, the FTC proposes to recognize these two methods as a way to obtain verifiable parental consent.The FTC also proposes to allow operators to collect a form of government-issued identification (driver’s license, truncated social security number) from the parent, as a way to verify the parent’s identity, provided that the parent’s identification is deleted “promptly” once the verification is done (p. 63).

Confidentiality, Security, and Integrity of Personal Information Collected From Children (16 CFR 312.8):

(p. 76 and following)

The Commission proposes to amend § 312.8 to strengthen the provision for maintaining the confidentiality, security, and integrity of personal information. The FTC thus proposes adding a requirement that “operators take reasonable measures to ensure that any service provider or third party to whom they release children’s personal information has in place reasonable procedures to protect the confidentiality, security, and integrity of such personal information.” Indeed, COPPA requires operators to establish and maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children, but does not explain what would be the data security obligations of third parties.

The FTC Commission proposes to amend § 312.8 to add:

“The operator must establish and maintain reasonable procedures to protect the confidentiality, security, and integrity of personal information collected from children. The operator must take reasonable measures to ensure that any service provider or any third party to whom it releases children’s personal information has in place reasonable procedures to protect the confidentiality, security, and integrity of such personal information.”

Safe Harbors (current 16 CFR 312.10, proposed 16 CFR 312.11):

(p. 80 and following)

COPPA established a “safe harbor” for participants in FTC-approved COPPA self-regulatory programs: compliance with these programs serve as a “safe harbor” against an FTC’s enforcement action. Such programs are, for example, the Children’s Advertising Review Unit of the Council of Better Business Bureaus, or TRUSTe.

The FTC proposes to amend paragraph (b)(2) of the safe harbor provisions of the Rule to read:

“An effective, mandatory mechanism for the independent assessment of subject operators’ compliance with the self regulatory program guidelines . At a minimum, this mechanism must include acomprehensive review by the safe harbor program, to be conducted not less than annually, of each subject operator’s information policies, practices, and representations. The assessment mechanism required under this paragraph can be provided by an independent enforcement program, such as a seal program.”

Data Retention and Deletion Requirements (proposed 16 CFR 312.10):

(p. 78 and following)

The FTC proposes to add new data retention and deletion provisions. Operators would retain children’s personal information for only as long as is reasonably necessary to fulfill the purpose for which the information was collected. Also, operators would have to delete this information by taking reasonable measures to protect against unauthorized access to, or use of, the information in connection with its deletion.

The new data retention and deletion provision (§ 312.10) would read:

“An operator of a website or online service shall retain personal information collected online from a child for only as long as is reasonably necessary to fulfill the purpose for which the information was collected. The operator must delete such information using reasonable measures to protect against unauthorized access to, or use of, the information in connection with its deletion.”

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Marie-Andrée was educated in France and in the United States, and holds law degrees from both countries. She is fully bilingual English-French, and writes articles regularly in these two languages on various privacy-related topics.
Marie-Andrée is a member of the Bar of the State of New York. As an attorney in solo practice, she focuses on intellectual property, First Amendment, privacy, and Internet-related issues.
Before becoming an attorney, she worked several years in the fashion retail industry, as a buyer then a director of marketing.
She is a member of the New York State Bar Association (Intellectual Property Section and International Section), and of the American Bar Association (Business Law Section, Section of Antitrust Law, and Section of Intellectual Property Law)